High Court refused interim injunction as damages remain an adequate remedy despite financial uncertainty.

THE HIGH COURT

[2025] IEHC 362

Record No. 2020 5373P

Between

JOHN RYAN

Plaintiff

and

PROMONTORIA (ARAN) IRELAND LIMITED, ULSTER BANK IRELAND DAC, JAMES

A. MURPHY and DAMIEN HARPER

Defendants

THE HIGH COURT

Record No. 2021 798P

Between

JOHN RYAN

Plaintiff

and

PROMONTORIA (ARAN) IRELAND LIMITED, ULSTER BANK IRELAND DAC, JAMES

A. MURPHY and DAMIEN HARPER

Defendants

Judgment of Mr. Justice Conor Dignam delivered on the 27th day of June 2025

INTRODUCTION

1. The first-named plaintiff issued a motion in each of the above sets of proceedings seeking various interlocutory injunctive reliefs, including restraining the sale of certain properties. It was agreed by the parties that the motion in the first set had been overtaken or subsumed by the motion in the second set of proceedings. This judgment therefore only deals with the motion in the 2021 proceedings, though some reference will have to be made to the broader context.

2. The second-named plaintiff is not a party to these motions. I will therefore refer to the first-named plaintiff simply as “the plaintiff”.

3. By way of Notice of Motion, Plaintiff seeks the following reliefs:

1. An Order by way of interim or interlocutory Injunction prohibiting the First Named Defendant and/or the Second Named Defendant, their servants and/or agents from transferring and/or disclosing in any way confidential and customer information and/or personal information or data (including sensitive personal information or data) of the Plaintiff, to any third party and in particular to the Third Named Defendant and/or the Fourth Named Defendant (“The Receiver”), their servants and/or agents.

2. An Order by way of interim or interlocutory Injunction prohibiting the First Named Defendant and or the Second Named Defendant appointing a Receiver and/or a Receiver and Manager over the property, assets and/or undertakings of the Plaintiff, or otherwise interfering with the Plaintiff’s rights over his property, assets and/or undertakings, including but not limited to the property described in the Plenary Summons (including the selling or leasing or advertising for sale or lease).

3. An Order by way of Injunction prohibiting the Third Named Defendant and/or the Fourth Named Defendant their servants and/or agents from acting or purporting to act as a Receiver and/or Receiver and Manager in respect of the property, assets and/or undertakings of the Plaintiff or otherwise interfering with the Plaintiff’s rights over his property, assets and/or undertakings, including but not limited to the property described in the Schedule to the within Plenary Summons (including the selling, or leasing or advertising the same for sale or for lease).

4. An Order by way of Injunction prohibiting the Third Named Defendant and/or the Fourth Named Defendant, their servants and/or agents from offering for auction any of the Plaintiff’s properties and in particular the property known as 4, Corr na Cille, Banagher, Co. Offaly, and/or an Order prohibiting the Third Named Defendant and/or the Fourth Named Defendant from concluding any sale of the said property pending the determination of the proceedings herein.

5. An Order directing by way of Injunction prohibiting the Third Named Defendant and/or the Fourth Named Defendant, their servants and/or agents from taking any further step until the relevant loans the subject of these proceedings have been reviewed under the Irish Central Bank Tracker Examination and until this review and examination process is concluded.”

4. The reliefs sought were originally in respect of seventeen properties but, as a number of those properties had already been sold or were the subject of separate Special Summons proceedings, it was agreed at the hearing that the relief was only sought in respect of a property at 4 Corr na Cille, Church Street, Banagher, Co. Offaly. Another property (11 Orlagh View) had not been sold, but as no steps had been taken to sell this property no reliefs were sought in relation to it.

5. Counsel for the plaintiff also indicated at the beginning of the hearing that Reliefs

1 and 5 in the Notice of Motion were not being sought. He also indicated that while the application for Relief 2 was being maintained, the main focus was on Reliefs 3 and 4.

6. Thus, in summary, the relief being sought by the plaintiff is:

(i) An injunction prohibiting the first or second-named defendant (“Promontoria” and “Ulster Bank” respectively) from interfering with the plaintiff’s rights over 4 Corr na Cille (“the Property”);

(ii) An injunction prohibiting the third and/or fourth-named defendants from acting as a Receiver and/or Receiver and Manager in respect of the Property or otherwise interfering with the plaintiff’s rights over the Property;

(iii) An injunction prohibiting the third and/or fourth-named defendants from offering the Property for auction and prohibiting either of them from concluding any sale of the property pending determination of the proceedings.

7. The background, insofar as relevant to these reliefs is, in summary, as follows. Some of these facts are in dispute and therefore the following should not be seen as findings.

8. The plaintiff and his wife were parties to a number of loans with Ulster Bank. It appears that these were for the purpose of buying properties for “Buy to Let” purposes. These included the Property, the subject of this application. The loan in respect of this Property was secured by a mortgage of the 22 nd December 2004. These facts are not in dispute.

9. This loan and mortgage were transferred by Ulster Bank to Promontoria on the 12 th February 2015. The plaintiff challenges the validity of this transfer in the substantive proceedings.

10. The third-named defendant was appointed as receiver of the Property in July 2016. This appointment was novated to the fourth-named defendant in November 2020. The plaintiff challenges both of these steps in the substantive proceedings.

11. As noted, several of the plaintiffs’ properties were sold. It seems that the thirdnamed defendant placed another of the plaintiff’s properties on the market in June 2020. This appears to have led to the institution of the first set of proceedings in July 2020.

12. In early 2021, the Property was advertised for sale by online auction which was to take place on the 19th March. The guide price was stated to be €85,000. The 2021 proceedings were instituted by a Plenary Summons followed by this application shortly thereafter.

13. The reliefs sought in the Plenary Summons include, though are not limited to, injunctive relief and reliefs in respect of the validity of the transfer of various loans and security from Ulster Bank to Promontoria and a challenge to the validity of the appointment of the third and fourth named defendants as receiver. The plaintiff took the position at the hearing that the challenge to the validity of the transfer and of the appointment of the third and fourth-named defendants are matters for the substantive hearing and not this application.

APPLICABLE PRINCIPLES

14. There was no dispute between the parties in relation to the general principles which apply to an application for an interlocutory injunction. They were set down in Campus Oil v Minister for Industry and Energy (No. 2) [1983] IR 88) and were restated in Okunade v Minister for Justice & Ors [2012] 3 IR 152 and then recalibrated by the Supreme Court in Merck Sharpe & Dohme v Clonmel Healthcare [2019] IESC 65 where O’Donnell J set out an eight-step approach. This was not meant as a prescriptive set of principles but rather as a useful analytical framework or approach. O’Donnell J emphasised the overarching or inherent flexibility of the remedy, whose purpose is to serve the interests of justice.

15. In the circumstances of this case, and in light of the bases upon which it was argued, it is not necessary to consider all of these steps in detail. Essentially the case turns on whether the plaintiff has established that there is a fair, serious or bona fide (these terms being used interchangeably) question to be tried and, if so, how best matters should be arranged pending trial. This involves a consideration of whether the balance of convenience/justice favours the grant or refusal of the injunction, including a consideration of whether damages would be an adequate remedy.

16. The threshold, in the case of a prohibitory injunction, of whether there is a fair or serious or bona fide question to be tried - is a low hurdle. Collins J in Betty Martin Financial Services Ltd v EBS DAC [2019] IECA 327 said:

“neither party takes issue with the judge’s view that the requirement to show a fair question/serious issue does not mean that the Agent must establish a very strong case and that the threshold to be surmounted is generally recognised as low (paragraph 11 of the judgment under appeal). It may be useful to regard this threshold as akin to the threshold that applies where a party seeks to dismiss a claim against it pursuant to the inherent jurisdiction and that was the approach taken by the High Court in a number of decisions cited to us including Wingview Ltd v NS Property Finance DAC [2017] IEHC 674 (per Haughton J, paragraph 14) and O’Gara v Ulster Bank DAC [2019] IEHC 213 (per Barniville J paragraph 42)”

17. The burden of proof in respect of each limb, including that the balance of justice favours the grant of the injunction, is on the plaintiff as the moving party.

THE PARTIES’ POSITIONS

18. The plaintiff raises a significant number of issues in his affidavits. These include: that the transfer to Promontoria was invalid on a number of grounds; that Promontoria had no authority to appoint a receiver; that documents which have been provided contain so many redactions that it is unclear that Promontoria have standing or hold the legal interest in the loan and security; that Promontoria is not a bank or credit institution; that the other properties in the plaintiff’s portfolio which were sold were not sold in a way to maximise price; and that the defendants have failed, refused and neglected to respond to requests for information and documentation so therefore the plaintiff is unable to ascertain how much is actually due.

19. However, the plaintiff’s position, as stated at the hearing, is that these are matters for the substantive proceedings. The issues upon which it was submitted at the hearing that the plaintiff had a fair issue to be tried were (i) that the receivers (the third and/or fourth named defendant) have no power of sale under the mortgage and, (ii) even if they have, the Property is being sold at an undervalue and that the method of sale will not obtain the best price reasonably obtainable.

20. The plaintiff submits that the balance of justice favours the grant of an interlocutory injunction.

21. The defendants say that the absence of a power of sale for the receiver in the mortgage does not give rise to a fair issue to be tried because Promontoria as mortgagee in possession has a statutory power of sale, which has become exercisable, and that Promontoria will effect the sale.

22. They also make a number of points as to why the balance of justice does not favour the grant of an injunction and the Court should exercise its discretion against granting one. It was pointed out that the plaintiff does not deny significant indebtedness to the first or second-named defendant. It was also submitted that the transfer of the Property occurred in February 2015 and that a receiver was appointed in July 2016 and properties were sold between then and 2020. It was submitted that the delay between 2016 is in itself is sufficient to defeat the plaintiff’s claim for an injunction. It was also submitted that this was the status quo at the relevant time and that the purpose of an interlocutory injunction is to maintain the status quo. It was also submitted that damages would be an adequate remedy in circumstances where this was an investment property. Finally, it was submitted that the plaintiff’s undertaking as to damages is meaningless in light of the plaintiff’s very significant indebtedness.

23. In response, the plaintiff submitted that there was in fact a dispute about the plaintiff’s indebtedness. He pointed out that the defendants have not clearly stated what the level of indebtedness is. While it is stated in the fourth-named defendant’s replying affidavit that on the 31st January 2014 letters of demand were sent to the plaintiff stating that €6,708,915 was owing at that stage, this can not be the up to date amount because Statements of Account exhibited to Mr. Harper’s affidavit show that very significant amounts were credited to those accounts on foot of the sale of other properties which had the effect of reducing the debt. I think it is fair to say that there is no real dispute about the plaintiff being indebted to Promontoria (subject to the issue of whether there was a valid transfer to Promontoria) but there is a clear dispute about the amount of the debt. In paragraph 29 of his replying affidavit the plaintiff says “Mr. Harper incorrectly avers at

Paragraph 4 of his affidavit that I do not dispute the said “substantial indebtedness” despite all previous correspondence and the within proceedings being necessary due to the fact the amount of the indebtedness is disputed and to which entity that debt is in fact due. For the avoidance of doubt, I say that I entirely dispute the “substantial indebtedness” and the ability of the First Named Demand to make any demand of me or my wife, Mrs Mary Ryan, in respect of same.” The plaintiff very carefully states that he disputes the “substantial indebtedness” rather than indebtedness per se and, indeed, says that “the amount of the indebtedness is disputed”. It is the plaintiff’s case that part of the reason for disputing the alleged indebtedness is the defendants’ failure to provide information to which the plaintiff is entitled. The plaintiff also rejects the defendants’ assertions that damages would be an adequate remedy or that his undertaking as to damages is meaningless. He does so on the basis that the defendants have not given any evidence as to the precise level of indebtedness and, in the absence of same, the Court can not assess whether damages would be an adequate remedy for either the plaintiff or the defendant. In respect of the status quo and delay, he says that the Property was only advertised for sale early in 2021 and he therefore did not require an injunction before that.

24. I provided the parties with an opportunity to make further submissions on any developments in the law after I had reserved judgment. I did so because some time had passed. I made it clear that the purpose of doing so was so they could address any recent law relevant to the arguments which had already been made. I made it clear that the parties were not entitled to reargue the case. The plaintiff delivered written submissions which were replied to by the defendants. The plaintiff then delivered further submissions and these were also replied to by the defendants.

25. In the first set of submissions, the plaintiff raised a number of points. These may be summarised as follows.

(i) First, online auction is not an appropriate way for a mortgagee to attempt to realise security.

(ii) Second, one of the other properties which have not yet been sold (72 Scholarstown Park) is the subject of separate Special Summons proceedings and the determination of this application should await the determination of those proceedings.

(iii) Third, it was submitted that the plaintiff’s solicitor had sought information in compliance with section 103 of the Land and Conveyancing Law Reform Act 2009 and this information was not provided. A number of points were made in respect of this: that it appears that the net proceeds from the sale of other assets were calculated without a sufficient breakdown of the deductions made or the sale price and that the plaintiff was entitled to this information by virtue of section 103 of the Land and Conveyancing Law Reform Act 2009 which gave effect to the common law principle that a receiver must obtain the best price reasonably obtainable.

(iv) Fourth, it was submitted that damages could not be an adequate remedy.

A number of cases were cited. These included two cases which long pre-dated the hearing. They also included Bank of Ireland v Hade [2023] IECA 292 (in which exemplary damages were awarded for the unlawful actions of a receiver selling property). It was submitted that if the court has jurisdiction to award exemplary damages this was a good indication that mere compensatory damages are not adequate in respect of alleged unlawful interference with constitutionally protected property rights.

(v) Fifth, the remaining properties “stand as good security” for the plaintiff’s liabilities to Promontoria. The plaintiff relied on the judgment of Kennedy J in O’Hagan v Harper & Anor [2024] IEHC 410.

(vi) Sixth, it was submitted that there are fair questions to be tried in relation to the alleged transfer of loans and security to Promontoria arising out of the redacted deeds of transfer. The plaintiff referred to O’Connor v Promontoria [2022] IEHC 616 and Tyrell v O’Connor [2022] IEHC 274. Put simply, the plaintiff submits that by “reasons of the redactions to deeds, the plaintiff is entitled to challenge the alleged transfer of loans and security to Promontoria, any powers it may have as a mortgagee, including appointing a receiver and directing him to act.”

26. In the defendants’ replying submissions they submit that by making these points the plaintiff is seeking to reargue the case by raising new points or by relying on cases which pre-date the hearing and therefore could have been raised at the hearing (of the eighteen cases cited in the plaintiff’s supplemental submissions only seven of them postdate the hearing). They also submit that the plaintiff’s submissions raised factual and legal propositions which (a) were not advanced in the exchange of affidavits prior to the hearing, and (b) are inconsistent with the evidence before the court for the hearing. They submitted that the Court should not entertain these new points and should not entertain any arguments on foot of cases which pre-dated the original hearing. Without prejudice to that contention, they addressed the merits of some of the points raised.

27. The plaintiff also cited the recent Supreme Court decision in Tweedswood Limited & Anor v Power [2025] IESC 18 (delivered on the 13th May 2025) and I directed short written submissions (word count of 750 words) addressing this authority. The plaintiff made such submissions (though far exceeding the specified word count). The plaintiff repeated the points about the defendants’ failure to provide the full information to which he is entitled, and his concerns about an online auction. He also referred to the fact that three of the properties listed in the schedule to the Plenary Summons are unsold. He specifically referred to a property at 20 South Circular Road which, it was clarified, is owned by the plaintiff’s daughter, and that steps have been taken by the receiver to sell this property and separate proceedings have been issued. The plaintiff also raised the point that in his replying affidavit Mr. Harper had said that the plaintiff has been in default of his alleged loans since 2012 and this means that any claim by Promontoria to recover the debt is statute barred and this extinguishes the mortgage and the debt (section 33 and 38 of the Statute of Limitations). In relation to Tweedswood, the plaintiff submitted that it was authority for the proposition that because the defendants had delayed in selling the unsold properties, the status quo is that the properties are unsold and this status quo should be maintained by an appropriate interlocutory order.

28. The defendants delivered replying submissions. Their primary position was that the Court should not permit these new arguments to be made, particularly in light of the fact that the plaintiff’s submissions were only permitted to address Tweedswood. Without prejudice to that, they addressed the argument that the debt is statute barred and submitted that the defendants can rely on various forms of acknowledgement made by the plaintiff contained in documents which were relied upon by the plaintiff and exhibited in the exchange of affidavits. They relied on Barrett J’s decision in Allied Irish Banks plc v Costello [2019] IEHC 286 and section 56(1) of the Statute of Limitations. It was also submitted that 20 South Circular Road was of no relevance to the determination of these applications as it is owned by the plaintiff’s daughter and is the subject of separate proceedings. In relation to Tweedswood, it was submitted that it is of no assistance to the plaintiff as it concerned a situation where a receiver had initiated proceedings, obtained an interlocutory injunction, failed to progress the proceedings and allowed the secured property to fall into a state of disrepair. It was noted that the Supreme Court recognised that its reasons for its decision were “peculiar and special to this case.”

29. The plaintiff also sought an opportunity to make oral submissions and I acceded to that application. In fact, at that hearing, Counsel for the plaintiff identified three points and limited his submissions to them. He referred to three other properties – 20 South

Circular Road, 11 Orlagh View and 72 Scholarstown Road. However, he also confirmed that the only property in respect of which interlocutory relief is sought is the Corr na Cille property. It was unclear whether the plaintiff is still pursuing the points raised in the two sets of written submission. I am proceeding on the basis that he is doing so. I therefore first deal with whether he is entitled to do so.

30. I am satisfied that he is not entitled to raise a number of the points which he sought to raise in this recent exchange of written and oral submissions. I am of this view in circumstances where it was specifically stated on behalf of the plaintiff at the original hearing that the points upon which it was being contended that he had a fair issue to be tried were that (i) the mortgage did not contain a power of sale on the part of the receiver, and (ii) the proposed sale was in breach of the duty to obtain the best price reasonably obtainable.

31. For that reason, he is not entitled to now submit that there are fair questions to be tried in relation to the alleged transfer of loans and security to Promontoria arising out of the redactions to the global deeds of transfer. While the authorities referred to by the plaintiff post-date the original hearing (O’Connor v Promontoria [2022] IEHC 616 and Tyrell v O’Connor [2022] IEHC 274), this point could have been raised at the original hearing. Indeed, the substantive proceedings include a challenge to the alleged transfers, but it was stated at the hearing that these were matters for the substantive proceedings.

32. I am also satisfied that he is not entitled to rely on the complaints about the defendants’ alleged failure to provide information save in respect of an aspect of the assessment of the balance of convenience. He raised the issue of a failure to provide information in the original exchange of affidavits but did not rely on it as a point on which there was a fair issue to be tried at the original hearing. He is not entitled to now seek to reargue the case.

33. I am also satisfied that he is not entitled to argue that “the remaining unsold properties stand as good security for the loans which were originally with Ulster Bank...” This could have been raised at the original hearing.

34. He is not entitled to raise 72 Scholarstown Road at this stage in circumstances where it was stated clearly at the original hearing and was confirmed at the most recent hearing that relief was only being sought in respect of Corr na Cille. In any event, while some of the same issues may have to be determined in the special summons proceedings in respect of this Property that is not a good reason to postpone delivery of judgment in this case where the effect of doing so would be to restrain the sale of Corr na Cille. That

would be the equivalent of granting an interlocutory injunction, which is the very issue to be determined.

35. Nor is he entitled to raise 20 South Circular Road and recent steps taken to place this property for sale by online auction. While this property is included in the schedule to the Plenary Summons, the plaintiff acknowledges that this property is owned by his daughter and not the plaintiff. It is also now the subject of separate proceedings brought by his daughter and a separate application for an interlocutory injunction.

36. He is entitled to make the argument that damages would not be an adequate remedy on the basis that the Court has a jurisdiction to award exemplary damages on the basis of Bank of Ireland v Hade [2023] IECA 292 as this case post-dates the original hearing, even though the argument could have been made at that stage.

37. I am also satisfied that he is entitled to argue that an injunction should be granted on the basis that the debt is now statute-barred in circumstances where the factual basis for this argument only arose after the original hearing.

38. Finally, he is entitled to make submissions on the basis of Tweedswood.

39. Of course, I make no finding at this stage on the merits of any of the points which I am satisfied the plaintiff is entitled to make.

40. In fact I do not consider it necessary to consider some of these points because I am satisfied that the plaintiff has established that there is a fair issue to be tried in respect of one of the points which were originally raised.

41. During the course of the additional submissions, it was submitted on behalf of the plaintiff that the Court could consider adjourning the application generally on condition that in the event that the defendants or either of them intended to put the Property back on the market a period of notice would be given to the plaintiff. The defendants did not agree to this. The plaintiff correctly submitted that the defendants’ agreement is not necessary because, once satisfied that there is a fair issue to be tried, the Court has a broad discretion as to the nature of the Orders which it might make pending the full trial in the interests of justice. However, it seems to me that where the intention of the defendants is to put the Property on the market, and I accept in theory that the plaintiff may not seek to restrain such sale if, for example, he is satisfied that the proposed vendor has a power of sale and/or is satisfied with the mode of marketing the property, in reality little is in fact likely to be achieved by adjourning this application on such condition and it is extremely likely that the matter would be back before the Court in early course.

FAIR ISSUE TO BE TRIED

42. I am satisfied that the plaintiff has established a fair issue that the receiver in this case does not have a power of sale. Clause 11 and 12 of the mortgage provide:

“11. At any time after the power of sale has become exercisable the Bank or any Receiver appointed hereunder may enter and manage the Mortgaged Property or any part thereof and provide such services and carry on such repairs and works of improvement reconstruction additions or completion (including the provision of plant equipment and furnishings) as deemed expedient. All expenditure so incurred shall be immediately repayable by the Mortgagor with interest at the rate aforesaid and shall be a liability charged on the Mortgaged Property. Neither the Bank nor any Receiver shall be liable to the Mortgagor as mortgagee in possession or otherwise for any loss howsoever occurring in the exercise of such powers.

12. Any Receiver appointed by the Bank hereunder over the Mortgaged Property or any part thereof shall be deemed to be the Agent of the Mortgagor and the Mortgagor shall be solely responsible for such Receiver’s acts or defaults.”

43. There is undoubtedly a fair issue that these clauses, in their terms, do not confer a power of sale on the Receivers.

44. Indeed, this is not seriously disputed by the defendants. The defendants’ position is, rather, that Promontoria is entitled to sell as mortgagee in possession and will sell in that capacity. It is put as follows at paragraphs 13 – 15 of Mr. Harper’s replying affidavit:

“13…To the extent that the Plaintiff advances this claim in respect of the [Property], it is the Defendants’ position that this claim does not avail the Plaintiff in circumstances where the First named Defendant as mortgagee under the mortgage has by virtue of s.19(1) of the 1881 Act the power of sale and can proceed to exercise that power of sale as mortgagee in possession.

14. A mortgagee holding security under a mortgage created by deed has a power of sale without a Court Order by virtue of s.19(1) of the 1881 Act provided that the conditions laid down in s.20 of the 1881 Act are met. Section 20 of the 1881 Act essentially provides that a mortgagee’s power of sale becomes exercisable when notice requiring payment of the mortgage money has been served on the mortgagor or one of several mortgagors, and default has been made in the payment of the mortgage money, or of part thereof, for three months after such service. Alternatively, the mortgagee’s power of sale also becomes exercisable where some interest under the mortgage is in arrears and unpaid for 2 months after becoming due.

15. As the Plaintiff and Mrs Ryan were formally called upon by separate letters of demand dated the 31st January 2014, which were issued by the Second named Defendant, to repay their indebtedness under the loan facilities which as of the 31st January 2014 was in the sum of €6,708,915.70 and as that sum included arrears of interest, it is clear that the First named Defendant as mortgagee has become entitled to exercise its power of sale of the particular property. In these circumstances, the Plaintiff’s objection to the sale of the property cannot be sustained.”

45. These paragraphs do not really address the point however. They simply assert that Promontoria has a right to sell the Property. Promontoria, as mortgagee, may have a power of sale, but that is not what is currently being exercised.

46. The only sale of which there is evidence is a sale by the receivers. In the Particulars and Conditions of Sale exhibited to the affidavits the vendor is stated to be “John Ryan and Mary Ryan acting by their RECEIVER James A. Murphy”. Special Condition 6 provided, inter alia:

“(a) James A Murphy (the “Receiver”), having been appointed by Promontoria (Aran)

Limited (PAL) as Receiver by the Instrument of Appointment on foot of the powers contained in the Mortgage has now agreed to sell the property.

(b) The Purchaser shall accept that the appointment of the Receiver under the Instrument of Appointment listed in the Documents Schedule is a valid and subsisting appointment and shall raise no objection requisition or enquiry in relation to such appointment. A certified copy of the Instrument of Appointment and the Mortgage will be handed over on closing…”

47. Thus, on the face of the contract, the power that is purportedly being exercised is a power of sale of the receiver qua receiver and not as agent of the mortgagee in possession.

48. It seems to me that while Promontoria may have a power of sale as mortgagee in possession, the Court must take the facts as they are at the time of the application. Those facts are that the draft contract clearly says that the sale is being effected by the Receiver qua receiver. There is also no evidence that Promontoria will in fact sell as mortgagee in possession. In his affidavit, Mr. Harper simply refers to Promontoria’s entitlement to sell the property as mortgagee in possession. He does not state that they will do so (see paragraphs 13-15 of his affidavit quoted above). Finally, there is no evidence that Promontoria is in possession of the Property. In this regard, there is no evidence that the receiver has been appointed as agent of the mortgagee.

49. Special Condition 7 provides:

“The property in sale will be transferred on completion to the Purchaser by way of a Deed of Assurance from PAL in which PAL will be expressed to assure a mortgagee pursuant to the powers contained in the Mortgage and the powers in that behalf conferred on mortgagee by statute. In such case, the Purchaser shall not require the Bank to give any covenants other than those implied by statute by virtue of the Bank conveyancing and being expressed to assure “as Mortgagee”, and the Purchaser shall not require any other person or party to join in the said Deed of Assurance and shall raise no objection, requisition or further enquiry in this regard.”

50. However, that does not affect the position that it is the receiver who is selling the Property. Allen J said in paragraph 57 of his judgment in Sammon v Tyrell & Everyday Finance DAC [2021] IEHC 6 that “…It cannot be right to balance against the threat that a creditor will purport to exercise a power which he does not have the prospect that the creditor may otherwise and by quite different means achieve the same end…”

51. Thus, the facts as they currently stand are that the receiver is purporting to sell qua receiver. There is a fair issue as to whether he has the power to do so.

52. The parties addressed my judgment in Nihill v Everyday Finance DAC & Ors [2022] IEHC 484. I do not think it necessary to deal with this case.

53. In circumstances where I am satisfied that the plaintiff has established a fair issue to be tried in relation to the power of sale I do not need to resolve whether there is a fair issue in respect of the other points raised which I am satisfied the plaintiff is entitled to raise.

BALANCE OF JUSTICE

54. It is clear from O’Donnell J’s judgment in Merck Sharp & Dohme v Clonmel Healthcare that if the Court is satisfied that there is a fair issue to be tried, it must then consider how best the matter should be arranged pending the trial and that this involves a consideration of the balance of convenience and the balance of justice. Traditionally, the adequacy of damages was a separate consideration and was determinative. However, it is clear that it is now to be considered as one of the factors in the assessment of the balance of justice, though in most cases, it is the most important factor. O’Donnell J stated, inter alia:

“(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;

(4) The most important element in that balance is, in most cases, the question of adequacy of damages;

(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;

(6) …

(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial.”

55. As noted above, Counsel for the defendants submitted that the purpose of an interlocutory injunction is to maintain the status quo pending trial. It was submitted that the status quo was that a receiver had been in place in respect of the Property since 2016 and that a number of other properties had been sold and, therefore, the effect of the injunction sought would in fact upset the status quo rather than preserve it. I do not accept that it can be stated in such blanket or black and white terms that the purpose of an interlocutory injunction is to maintain the status quo pending trial. It is clear from Merck Sharp & Dohme v Clonmel Healthcare that an interlocutory injunction is a flexible remedy and what the Court must determine is how best matters should be arranged pending the trial in the interests of justice. That will often mean the maintenance of the status quo but it does not necessarily mean that.

56. In any event, the submission that relief should not be granted because it would upset rather than preserve the status quo does not apply to the injunction to prohibit the sale of the Property because that Order is in fact directed at preserving the status quo.

57. In fairness to the defendants, their argument in respect of the status quo was not limited to a bare contention that the injunction should be refused in order to maintain the status quo. It was also made as part of the submission that the Court should refuse an injunction in the exercise of its discretion on the grounds of delay and/or acquiescence. Essentially the argument was that a receiver has been appointed over this Property and a number of other properties since 2016, that a significant number of those other properties have been sold, and that it was clear that there was a possibility that the Property would be sold, and the plaintiff did nothing for a period of five years to challenge this status quo. Indeed, it was submitted that the plaintiff did not evince in correspondence any intention to challenge the actions of the defendants and in fact indicated a willingness to enter into a negotiated settlement.

58. Delay is undoubtedly a factor to be considered in the balance of justice. For example, in McGonagle v McAteer (2017) IEHC 672, where there had been a delay of approximately four years between the appointment of the receiver and the institution of proceedings and lands had been sold in the meantime, Stewart J held that:

“7. It seems to me an inescapable and unavoidable conclusion that the plaintiffs in this case have delayed to such an extent that the Court is obliged to be cautious in considering the grant of their application for interlocutory relief…one of the conclusions reached by Jacob J [in Newport Association Football Club Ltd v Football Association of Wales [1995]

2 All E.R. 87] was that a delay in excess of two years would be a nigh-automatic bar to the grant of interlocutory injunctive relief. Furthermore, Jacob J was at pains to point out that the case he was dealing with was an exceptional case in and of itself. I cannot see any such exceptional aspect in the case brought by the plaintiffs to this Court. Thus, it seems to me that, on the question of delay alone, the plaintiffs could not succeed in their application for interlocutory relief.”

59. In Nolan Transport (Oaklands) Ltd v Halligan (Unreported, Keane J, 22nd March 1994), Keane J said:

“…In all cases of this nature where interlocutory relief is sought the courts expect the parties to move with reasonable expedition where they are seeking interlocutory relief because it is of the essence of such relief that if it turns out that it has been wrongly granted one party has suffered an injustice. It is therefore a remedy which should not be lightly invoked; and if invoked, it should be invoked rapidly and where a party simply awaits events as they unfold he cannot expect to find the court amenable to the granting of this relief, as it would where a party moves expeditiously to protect his rights.”

60. The weight to be attached to delay or acquiescence will depend on the particular circumstances. On the facts of this case, its weight is limited because the interlocutory injunctions sought are primarily directed towards preventing the sale of the Property and the plaintiff did in fact move promptly once the Property was put up for sale. It seems to me that the question of delay would be of much greater significance if the plaintiff had maintained his application for the injunctions on the basis that the transfer of the loans

and security to Promontoria and the appointment of the receiver were invalid because both of these events occurred a number of years prior to the institution of these proceedings.

61. Thus, I am satisfied that the question of delay is of relevance but that its weight on the facts of the case is not significant.

62. The adequacy of damages is a central part of the assessment of the balance of justice. The starting point in relation to an assessment of the adequacy of damages for the plaintiff if he is ultimately successful is that this Property was bought as a “Buy-to Let” property and there is no evidence of it being used personally by the plaintiff or his family. It is an investment property. Indeed, it was one of a number of properties bought by the plaintiff and his wife for the purpose of letting them out. It is part of an investment portfolio. As such, the starting point must be that the plaintiff could be compensated by an award of damages.

63. In Sammon v Tyrell and Everyday Finance DAC, Allen J was of the view that the balance of justice favoured the grant of an interlocutory injunction restraining the sale of lands by a receiver. He said at paragraph 62:

“I have had no difficulty in identifying the lesser risk of injustice. If the plaintiffs win, they get to keep their garden and hobby farm. Whether later and by some other means the defendants can establish that they are entitled to a court order for sale is another day’s work. If the defendants win, they will get to sell the lands. The balance is between the inevitable postponement of the exercise of the defendants’, especially Everyday’s, right to sell and the risk of extinguishment of the plaintiffs’ rights as the owners of the land.”

64. However, that was in circumstances where Allen J found that the lands could not properly be seen as a commercial investment property and he rejected the defendants’ description of them as “non-essential assets”. Those lands consisted of a parcel surrounding the site on which the plaintiffs had built their family home and an adjacent seventeen acres which were used by them as a hobby farm and for recreational purposes. It was in that context that Allen J said that “If the lands were now sold and the plaintiffs won their case, the plaintiffs would have been permanently – and wrongly – deprived of their property.” This case is readily distinguished. The Property is clearly a commercial property.

65. The plaintiff makes a number of points in his grounding affidavit. Firstly, he says that if the receivers sell the Property or appropriate the rents therefrom, the plaintiff “will suffer irreparable harm, in particular to my business interest and credit reputation and rating and in the circumstances damages would be impossible to quantify and furthermore that damages would not be an adequate or appropriate remedy for the loss and damage that may be suffered by the Plaintiff in particular to my property rights.” However, damage to business interest is generally compensable by an award of damages. Difficulty in assessing damages is not determinative but it is a factor to be taken into account. However, more fundamentally, the plaintiff does not explain how such irreparable harm to his business interest and credit reputation and ratings would be caused to his interests by the sale of this specific Property. This is particularly significant in the context of the sale of a large number of other properties having already taken place. In my view, the plaintiff has failed to establish how the sale of the particular property would cause irreparable harm that could not be compensated by an award of damages.

66. The plaintiff also relies on paragraphs 86 and 87 of Allen J’s judgment in Charleton v Hassett [2021] IEHC 746, Allen J had to consider an application by a receiver for an interlocutory injunction. The relevant indebtedness appeared to be somewhere in the region of €550,000 – €650,000. There was no evidence as to the value of the relevant property. When dealing with the adequacy of damages, Allen J said:

“86 …it seems to me that I could not make any assessment of the adequacy of damages without some evidence that if the case were to go to trial in the ordinary way it would likely realise less than the liabilities secured by the charge. If, for the sake of argument, there was evidence that the realisable value of the property with vacant possession was €1 million, there would be little risk of injustice in allowing the action to go to trial. To be sure, if the action were to succeed, the practical effect of refusing interlocutory relief would be that the charge holder’s remedy would have been postponed: but interest on the loan continues to accrue and it would have suffered no loss.

87. By the same token, it seems to me that without any evidence that the property is likely to realise less than the secured liabilities there is little basis for concluding that the intervention of the court is called for at this time.”

67. In relying on this case, the plaintiff relies on the fact that there is no clear statement by the defendants as to the current indebtedness. It was submitted by the plaintiff that Mr. Harper states in paragraph 6 of his affidavit that letters of demand were sent on the 31st January 2014 stating that the indebtedness then was €6,708,915 but that this figure can not be the current total indebtedness because the Statements of Account (at the 6 th May 2021) exhibited by Mr. Harper show the debt being reduced from that figure. It seems likely that this was through the sale of some of the other properties. This was not disputed by the defendants. The Property was being sold for €87,000 and the plaintiff exhibits a valuation of €160,000. It was submitted that without knowing the precise figure for the

debt, the Court could not know whether the Property would be sold for less or for more than the current debt.

68. However, it seems to me that Charleton v Hassett is of limited assistance and is distinguishable. Firstly, that was an application brought by the receiver and therefore the burden of proof was on the receiver. In this case, the burden of proof is on the plaintiff. Secondly, what was being considered in that passage of Charleton v Hassett was whether damages would be an adequate remedy for the receiver (the applicant for the injunction in that case) and directly relevant to that was the question of whether the sale would obtain more or less than the liabilities secured by the charge because that was relevant to the question of the risk of injustice. What is at question here is whether, if the Property is wrongfully sold, the plaintiff could be compensated in damages.

69. I am therefore not satisfied that the plaintiff has established that damages would not be an adequate remedy.

70. The adequacy of damages for the defendants in the event that an injunction is granted but the plaintiff ultimately fails in the proceedings must also be considered. The defendants contend that the plaintiff’s undertaking as to damages is not meaningful or, as they put it “real or substantial” because of “the very substantial indebtedness owed by the Plaintiff under the loan facilities. The Defendants therefore do not accept that the Plaintiff will be in a position to compensate the Defendants in respect of any financial loss and damage suffered by them in the event that the Defendants are successful in defending the proceedings.” I am satisfied that the plaintiff has not established that he would be able to discharge an award of damages. He sought to do so by reference, in his first set of recent submissions, to “...the remaining unsold properties stand as good security for the loans which were originally with Ulster Bank...” I have decided that he was not entitled to raise this argument at this late stage. While he relies on the recent judgment of Kennedy J in O’Hagan v Harper [2024] IEHC 410 at paragraphs 55 ff., then argument itself could have been raised at the original hearing.

71. The correct approach to the question of the meaningfulness or worth of a plaintiff’s undertaking as to damages has been considered in a number of cases.

72. In Allen v Jambo Holdings Ltd [1980] 1 WLR 1252, the High Court of England and Wales discharged a Mareva injunction on the grounds that the plaintiff’s undertaking as to damages was worthless. This was appealed and the appeal was upheld. Denning MR said (quoted by Allen J in Sammon v Tyrell & Everyday Finance):

“There is one other point I must mention. It is said that whenever a Mareva injunction is granted the plaintiff has to give the cross-undertaking in damages. Suppose the [plaintiff] should lose this case altogether. She is legally aided. Her undertaking is worth nothing. I would not assent to that argument. As Shaw LJ said in the course of the argument, a legally aided plaintiff is by our statutes not to be in any worse position by reason of being legally aided that any other plaintiff would be. I do not see why a poor plaintiff should be denied a Mareva injunction just because he is poor, whereas a rich plaintiff would get one.

One has to look at these matters broadly. As a matter of convenience, balancing one side against the other, it seems to me that an injunction should go to restrain the removal of the aircraft.”

73. Clarke J in an ex tempore ruling in Molloy & Molloy v Molloy [2007] IEHC 282, placed a different emphasis on the question of an applicant’s ability to satisfy any award on foot of such an undertaking. He said, inter alia:

“14. However the defendant has questioned the capacity of the plaintiffs to meet any damages that might be awarded. Despite this having been raised on a credible basis…, no evidence was tendered which would suggest that the plaintiffs could meet any award of damages which might be made on foot of their undertaking.

15. The defendant suggested that it was her understanding that an undertaking should not be accepted in those circumstances. That is not, strictly speaking, correct. Any plaintiff is entitled to offer an undertaking as to damages. The capacity of the plaintiff to meet any such undertaking does not affect the validity of the undertaking itself. However the capacity of the party concerned to meet any damages which might likely be awarded is a material factor in considering the adequacy of damages and the balance of convenience. A party which could adequately be compensated in damages and who has the benefit of an undertaking from an opposing party who would be good for any likely damages to be awarded is in a very different position from a party faced with a largely worthless undertaking as to damages.”

74. He then went on to weigh up the balance of convenience and included in that exercise the likely inability of the plaintiffs to satisfy their undertaking. He concluded:

“18. In those circumstances it seems to me that I should refuse to grant the interlocutory order sought. As that decision turned, to a very large extent, on the inability of the plaintiffs to compensate the defendant in the event that damage should be caused to the property, I should indicate that I would take a different view of the matter should the plaintiff be in a position to give a suitably fortified undertaking as to damages or be in a position to procure that the property can be adequately insured pending trial. Were that situation to ensue then it would seem to me that the exposure of the defendant would be such as could be adequately compensated in damages. In those circumstances any such damages would be likely to be, in practice, recovered. The balance would, in that event, be different.”

75. In Nolan & Ors v Dildar Ltd & Ors [2020] IEHC 243, Barniville J set out a nonexhaustive list of the principles applicable to undertakings as to damages. He said at paragraph 228:

“…in most cases, a party seeking an interim or interlocutory injunction will be required to provide an undertaking as to damages. The purpose of requiring such an undertaking is to strike a fair balance between the respective rights of the party seeking the interim or interlocutory injunction and of the party against whom the orders are made…Such an undertaking has been described as the “price which the person asking for an interlocutory injunction has to pay for its grant”…Fennelly J in the Supreme Court in Minister for Justice, Equality and Law Reform v Devine [2012] IESC 2 referred to the “invariable practice” of requiring an undertaking as to damages, at least at the interim stage of proceedings, although the court did not exclude the possibility of there being exceptional cases, such as in the case of an impecunious applicant, where the court might dispense with the undertaking as to damages…In his judgment in that case, O’Donnell J discussed some of the circumstances in which a court could give an injunction, notwithstanding that the undertaking as to damages was of little or no worth (see paras. 23 and 24)

76. Barniville J also noted at paragraph 237:

“…generally when receiving an undertaking as to damages and granting an interim or interlocutory injunction, the court must be satisfied of the ability of the party giving the undertaking to meet the claim on foot of it…The court can refuse to grant an interlocutory injunction, in the exercise of its overall disrection, if it is not satisfied that the party giving the undertaking as to damages will be in a position to honour it.”

77. In Minister for Justice, Equality and Law Reform v Devine [2012] 1 IR 326, O’Donnell J said:

“23… it is well established that a court can give an injunction notwithstanding the fact that the undertaking as to damages is of little or no worth because of the lack of means of the Minister (Allen v Jambo Holdings Ltd. [1980] 1 W.L.R. 1252). It would clearly be wrong that the deserving plaintiff with a good claim would be denied an injunction simply because they were without assets. In such a case the court must take into account the unlikelihood of such a party being able to satisfy an undertaking as to damages as one of the factors in considering the grant of an interlocutory injunction but may, and on occasion does, proceed to grant an injunction in such circumstances without such an undertaking. Finally, it is generally the case that an undertaking as to damages will not extend to protect the interests of third parties.

24 The picture which emerges, therefore, is not of a mechanical rule, but rather of the exercise of the discretionary jurisdiction in which the presence or absence of an undertaking as to damages may be significant, and in many cases decisive…”

78. Stewart J said in McGonagle v McAteer that “It is clear from the decision of Clarke J in Molloy & Molloy v Molloy that the Court is entitled to rely on the undertaking as to damages from the plaintiff. However, in weighing the question of where the balance of inconvenience lies, the Court can have regard at that stage to the reality or the viability of that undertaking as to damages. Clarke describes it best as looking to where the “inconvenience” lies…”

79. In Buttimer v Oak Fuel Supermarket [2023] IEHC 126 I said at paragraph 89 that:

“89. ... The ability of the plaintiff to satisfy an award of damages made on foot of her undertaking and her decision not to place any financial information before the Court are undoubtedly factors which the Court can and must take into account but it is essential not to place too much weight on them. The purpose of an undertaking as to damages is to provide an avenue for the successful defendant to recover any damages from the unsuccessful plaintiff who had secured interlocutory relief and it is therefore relevant whether the undertaking is a meaningful one. However, a precondition that an applicant for an injunction must prove at that stage that they have the means to satisfy an award of damages (the quantum of which is not known at the time the undertaking is given)

against them would have the potential to deprive individuals of more limited means of the right or ability to obtain interlocutory relief against an alleged wrong. It would have the effect of limiting the availability of equitable relief to those with means and assets. If the plaintiff obtains an injunction on foot of an undertaking as to damages, the defendant, if successful at trial, can obtain an award of damages on foot of that undertaking and will have all of the usual enforcement mechanisms available to it. Thus, the ability to satisfy any award and the absence of financial information are important relevant factors but do not in themselves automatically disqualify the plaintiff from obtaining relief, if otherwise entitled to it.”

80. Thus, the likely inability of the plaintiff to satisfy his undertaking as to damages is not a disqualifying factor but, it is an important factor in the assessment of where the balance of justice lies.

81. The plaintiff also submitted that the fact that the Court could award exemplary damages is indicative that damages could not be an adequate remedy. I do not accept the logic of this argument. While exemplary damages are not a species of compensatory damages, they are nonetheless a form of damages, and the Court’s jurisdiction to award them in an appropriate case in fact seems to me to support the view that damages can be an adequate remedy. It is also important to note, though I have not determined this point on this basis, that in fact the plaintiff does not claim exemplary damages in his Plenary Summons (see Costello J’s discussion of same from paragraph 80 of her judgment in Bank of Ireland v Hade [2023] IECA 292).

82. In my view, taking all these factors into account, the balance of convenience or balance of justice is against the grant of an interlocutory injunction. The adequacy of damages for the plaintiff, while no longer a separate and determinative factor in its own right, is nonetheless a very important, if not the most important, consideration in the assessment of this balance. The plaintiff has not established that damages would not be an adequate remedy. Other factors which lean against an injunction are the question of delay on the part of the plaintiff (though its weight is limited), and the likelihood that the plaintiff will not be able to satisfy an award of damages.

83. Leaning against those factors is the fact that the precise figure for indebtedness is unknown and therefore the prejudice to the defendants if an injunction is not granted is not known, and the likelihood that the value of the Property is likely to increase.

84. Nonetheless, these do not outweigh the factors which lean against the grant of an injunction.

85. I will therefore refuse the relief sought.